June 26, 2014

Free Speech Includes Bullying Women*

Eight murders, 17 attempted murders, 42 bombings, 181 arsons, 100 acid attacks, and countless other incidents of blockades, vandalism and threats. This isn’t a listing of tragic events in a Third World country; it’s what has happened at women’s clinics in the United States since 1977. Massachusetts alone had two women shot dead and another five women wounded. That’s the reason that the state passed a law in 2007 requiring a 35-foot buffer zone around clinics. That’s the law that the U.S. Supreme Court overturned in today’s ruling.

The law was intended to protect the safety of both patients and employees. Protesters claimed that they had the First Amendment right to “engage” women at the clinics. The poster witness for the anti-choice activists was a “sweet-little-old-grandmother” who said she just wanted to talk to the women, to give them “comfort.” It’s the same excuse that abusers use for their victims: they just want to “talk.” Eleanor McCullen, the lead petitioner, said about her anti-choice discussions with the women, “We’ll be gentle and loving.”

All nine justices, in McCullen v.Coakley, agreed to overturn a lower court ruling that relied on the U.S. Supreme Court’s 2000 ruling for an eight-foot buffer-zone law in Colorado. The three-judge panel of the 1st Circuit Court of Appeals ruled that “the law does not require that a patient run a public-sidewalk gauntlet before entering an abortion clinic. First Amendment rights do not guarantee to the plaintiffs (or anyone else, for that matter) an interested, attentive, and receptive audience, available at close-range.”

The justices ignored a report from the National Abortion Federation showing buffer zones reduced criminal activity at 51% of facilities after these were put into place. Three-fourths of the facilities reported that buffer zones “improved patient and staff access to the facilities.” In the same survey, 92% of facilities said they are concerned about their patients’ safety approaching the facility. In addressing freedom for protesters to voice opposition, Physicians for Reproductive Health board chair Nancy L. Stanwood requested the same freedom from harassment and violence in accessing health care services. Women have lost this freedom as activists are now free to verbally hound them up to the doorway of Massachusetts’s women’s clinics.

In the SCOTUS ruling, Chief Justice John Roberts wants public access to all “public fora” for speech activities. Free speech on the sidewalks has a higher constitutional priority than public safety concerns for women entering clinics. “Government’s ability to restrict speech in such locations is very limited,” Roberts wrote. The ruling appeared to show concern that the number of women who were talked out of abortions had fallen because protesters had been kept away from them. Two witnesses had reported that they reached far fewer people than before the Massachusetts’ law took effect.

The Court ruled that abortion providers could create rules with the police on a case-by-case basis to ensure safe access.

The question that justices avoided in the case is a definition of intimidation. Should women going to a clinic for any health reasons—cancer screening, regular checkups, etc.—be subjected to people who lecture them on their killing a fetus. The Court said that the protesters are “sidewalk counselors” because they distribute leaflets and offer “an outstretched arm.” They seek to engage in “consensual conversations with women.”

Consensual usually means that all involved want the event to occur. How does the Court guarantee that the “counselors” are not actually blocking a woman from entering the clinic? Megan Amundson, director of the National Abortion Rights Action League’s Massachusetts chapter, said that violence occurs when “don’t want to talk or engage with the protesters.”

Mark Rienzi, attorney who persuaded the Court that his clients were very nice people and only wanted to talk, said that most of the trouble occurring at the Boston clinic was on Saturday mornings. Possibly an idea is to go on another day. Most of the women using the clinic, however, work during the week, making them vulnerable to the Saturday morning trouble.

Former state legislator Paul Demakis, who represented the district where John Salvi III walked into two different clinics and killed two receptionists, said, “What the protesters did was—in very aggressive, even offensive ways—to interfere with and to intimidate women going into health clinics to exercise their right to choose.” He worked to craft the 35-foot buffer-zone law that extended to 35 feet because Boston Police Captain Bill Evans said that a lesser radius was unenforceable. Demakis pointed out that 35 feet is “a little more than halfway between home plate and the pitcher’s mound.”

Before the buffer zone was enacted, protesters impersonated the police, screaming women’s faces, took telephone numbers, filmed inside patients’ cars. They touched the patients without consent and initiated physical altercations.

Today’s ruling against women shows where we fit in the hierarchy of law. Polling places and funerals have buffer zones of at least 150 feet and 300 feet, depending on state law. Earlier this year, SCOTUS ruled that an anti-war protester could be kept away from a public road near California military base and the political protesters could be kept farther away on sidewalks from George W. Bush than his supporters were. A unanimous SCOTUS ruling for Wood v. Moss decided thatanti-Bush protesters were legally moved farther from the then-president’s dinner table than the friendly demonstrators. Justice Ruth Bader wrote, “People are not at liberty to speak whenever, however, and wherever they please.” Bush consistently required zones to protect himself from free speech protesters.

The justices also protect themselves. Last year, a federal district judge ruled that a 1949 law barring demonstrations on court property was unconstitutional, and SCOTUS immediately issued a regulation barring demonstrations on the public plaza in front of the Supreme Court building. Their buffer zone is 252’ by 98’ where people cannot picket. These spaces are all “public fora” not covered by today’s ruling.

The only good news from today’s decision is that the Court could have wiped out all buffer zones. Justice Antonin Scalia wants to overturn the SCOTUS decision in Hill v. Colorado in which a majority of the Court allowed a 100-foot buffer around medical offices and an eight-foot buffer around patients. Part of that ruling stated that “protecting the well being of patients entering or exiting healthcare facilities is specifically targeted by this legislation because they are more likely to be emotionally and physically vulnerable.” Justice Anthony Kennedy, now the swing vote on the extremely conservative Court, was one of three dissenters in Hill.

The bad news is that the entrance to women’s clinics will be filled by bullies calling women names such as whores and murderers. The same people will “accidentally” block women from entering and “accidentally” bump into clinic workers. Because of the nation’s lax gun laws, they may also “accidentally” shoot and kill clinic workers and patients. Little-old-lady Eleanor McCullen may have been the person to appear in court, but she won’t be the only person accosting women who need health care. Christian family values: physically intimidate women getting legal health care and workers who provide for their services.

In Wood, Justice Ginsburg explained that “in directing their displacement, the agents acted not to ensure the President’s safety, but to insulate the President from their message.” Women trying to get health care should be insulated from anti-choice protesters’ vicious, hateful messages.

Would the Supreme Court understand the dangers of today’s decision if eight of them had been murdered during the past 20 years? And how many murders, assaults, arsons, bombings, acid attacks, death threats, vandalism, and other acts of violence are necessary at women’s clinics before a more sane court addresses the question of buffer zones?